CIV3701 Jan 2022 with QR Code PDF

Preview

Summary

[TURN OVER]UNIVERSITY EXAMINATIONSJanuary/February 2022CIVCivil Procedure100 MarksDuration 5 hours and 30 minutes (in Arial 11pt)First examiner: Adv. Ndlazi; Ms M MkhabelaSecond examiner: Ms MP MothapoThis paper consists of 6 pages.QR code and instructionsImportant Notice for using The Invigilator A...

Description

UNIVERSITY EXAMINATIONS

January/February 2022

CIV3701 Civil Procedure 100 Marks Duration 5 hours and 30 minutes (in Arial 11pt) First examiner: Second examiner:

Adv. Ndlazi; Ms M Mkhabela Ms MP Mothapo

This paper consists of 6 pages.

QR code and instructions

Important Notice for using The Invigilator App: CIV3701 Please take note that the use of The Invigilator App is compulsory for your upcoming assessment/exam. Failure to use the application will result in your exam mark being retained. Your attention is drawn to the following important matters: • Please find the Student User Guide attached. It is crucial for you to work through this document in advance, even if you have used the app before, as the app contains added functionality. • Please watch the student demo instructional video at the following link (which can also be found in the user guide): https://youtu.be/rJTX8V3att0

[TURN OVER] Open Rubric

Confidential Page 2 of 8 • • • •

• • •

CIV3701 January/February 2022

Please download and familiarise yourself with The Invigilator app, which is available in the App Gallery, App store and Play store. Please register on the application using your UNISA student e-mail address. If you’ve used the app in 2020 you will need to register again. Perform the demo assessment process outlined on pg. 8 of the attached Student User Guide. Please note that there is no limit on the number of attempts for the demo test. If you only have one device you must still use The Invigilator app, as the in-app browser allows access to MyExams. Please refer to the Student User Guide in this regard and watch the following video on the in app browser: https://www.youtube.com/watch?v=lLcb2GyHC1M Please update your application to the latest version available on your app store. Please visit the following link for further resources, support & FAQ: https://invigilatorapp.digikamva.education/student-support-faq/ If you experience any difficulty with The Invigilator app, please WhatsApp the technical helpdesk on 073 505 8273.

INSTRUCTIONS FOR A PORTFOLIO OR TAKE-HOME EXAM ON MYEXAMS

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. 1.

The examination question paper counts 100 marks.

2.

It consists of 6 questions. Answer ALL of the questions.

3.

The duration of the examination is 5 hours and 30 minutes. Exam start 25 February 2022 at 12:30. Your answers must be submitted via the myExams platform on 25 February 2022 on or before 18:00 (South African Standard Time).

4.

5.

This a closed-book examination. While the examination is in progress, you are not allowed to consult another person or any source in order to assist you to answer any of the questions contained in this question paper. While the examination is in progress, you may not assist another student in answering any of the questions contained in this question paper. This examination is proctored via the Invigilator App.

6.

SUBMISSION OF YOUR EXAMINATION ANSWER FILE

Your answer to this take-home examination must be submitted online on the myExams platform. 6.1

Access myExams at https://myexams.ac.za/portal and login using your student number and myUnisa password.

6.2

Go to your specific examination site through the site tabs on the horizontal navigation bar. Also check your Sites link in the top right-hand corner if you do not find the site on the horizontal navigation bar.

6.3

Once the site has loaded, select the eAssessment tool from the left-navigation menu.

6.4

The list of all available assessments in the site will be displayed.

6.5

Select the assessment for which you want to upload the examination answer file by clicking on the title of the assessment in the list. A new page will open.

6.6

Submit your examination answer file.

[TURN OVER]

Confidential Page 3 of 8

CIV3701 January/February 2022

You are allowed to attach ONE PDF file. Under Attachments, click the Choose File button to browse for a file on your device.

Once you have attached your answer file, the name of the file, as well as the file size and upload time stamp will be displayed under Attachments. Tip: You may click Remove to remove the attachment if you selected the wrong file. Tip: Select the honour pledge. Students MUST check the honour pledge before submission if it appears on the screen. A student will not be able to submit the assessment if he/she did not check the honour pledge. When you are ready and satisfied that you have correct answer file, click the Submit button to complete your assessment submission. Tip: If you are not yet ready to submit, you may click Preview to preview the submission, or Save Draft to save your submission and submit it later. Click Cancel to exit the assessment without saving or submitting. You are advised to preview your submission to ensure that it is legible and that the correct answer file has been uploaded. Time permitting, you will be allowed to resubmit your exam file twice.

6.7

Submission confirmation

[TURN OVER]

Confidential Page 4 of 8

CIV3701 January/February 2022

Once you have submitted your assessment, you will receive a confirmation message on the screen. Make a screen copy for your records. In addition, if you have opted to receive email notifications, you will also receive an email confirmation of your submissi on. 7.

The cover page to your take-home exam must include your name, student number and the module code.

8.

It is preferred that your take-home exam is typed. However, handwritten submissions will also be accepted.

9.

Whether your answers are typed or handwritten, your submission on the myExams platform must be made in the form of one PDF document.

9.1

The exam answer file that you submit must not be password protected or uploaded as a “read only” file.

9.2

Your examination answer file will not be marked if:

9.2.1 9.2.2 9.2.3

you send your examination answer file via email. you submit the incorrect examination answer file. you submit your exam answer file on an unofficial examination platform (including the invigilator cellphone application). you submit your examination answer file in the incorrect file format. you submit a password-protected document. you submit your examination answer file late.

9.2.4 9.2.5 9.2.6 9.3

The mark awarded for an incomplete examination answer file submission will be your final mark. You will not be allowed to resubmit after the scheduled closing date and time of the exam.

9.4

The mark awarded for an illegible examination answer file submission will be your final mark. You will not be allowed to resubmit after the scheduled closing date and time of the exam.

10.

If your answers are typed, ensure that the following requirements are adhered to.

10.1

The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double line spacing after the paragraph.

10.2

The text must be justified.

10.3

All of the pages must be numbered in the right hand corner at the bottom of the page.

10.4

All margins must be 2.5cm, but the left margin must be 3cm.

10.5

South African English and not American English should be used. For example, the correct spelling is “Labour” and not “Labor”.

10.6

Do not use abbreviations or SMS language.

10.7

All quotes that are two lines long (or less), must form part of the main text, be written in italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a separate

[TURN OVER]

Confidential Page 5 of 8

CIV3701 January/February 2022

paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are required when the quotations stand alone. Use quotations very sparingly. In this take-home exam, a maximum of 5% of the text may be quoted. 11.

The arguments that you make must be logical, well-structured and substantiated by all of the relevant legal principles. You are given 06 hours to complete the take-home exam. Use the time given wisely.

11.1

Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your footnotes.

11.2

You are required to have read and summarised the prescribed study material yourself.

11.3

A number of students lose marks because they do not approach problem-type questions correctly. When answering such questions, it is important to first clarify for yourself the area of work where the answer must be sought. Once you have done this, set out the relevant legal principles. Deal only with those principles that relate to the given facts. Next, apply these principles to the facts. This is where most of the students lose marks - they set out the law in some detail, but then do not illustrate how it applies to the factual situation they have been asked to solve. Finally, state your conclusion.

12.

By ticking the Honour Pledge, you confirm that you have read (i) the University’s Policy on Copyright Infringement and Plagiarism and the Student Disciplinary Code, which are both available on myUnisa: www.unisa.ac.za/unisarules , and (ii) the information relating to student values and plagiarism that is found at https://www.unisa.ac.za/sites/myunisa/default/Study-@-Unisa/Student-values-and-rules.

12.1

Students suspected of dishonest conduct during the examination will be subjected to disciplinary processes. UNISA has zero tolerance for plagiarism and/or any other forms of academic dishonesty.

12.2

Students who have not utilised the invigilation or proctoring tools will be subjected to disciplinary processes (this rule is only applicable if your module is on the invigilated module list).

PLEASE NOTE: If you experience technical problems of any kind on the day(s) of the examination (including network or loadshedding challenges) and your examination answers are not submitted by the cut-off time, please re-register for the module. Students experiencing technical challenges may contact the SCSC on 080 000 1870 or email [email protected] or refer to Get-Help for the list of additional contact numbers.

[TURN OVER]

Confidential Page 6 of 8

CIV3701 January/February 2022

INTRODUCTORY STUDIES QUESTION 1 (a)

Discuss the difference between a pleading and a process.

(6)

(b)

When does a dispute of fact arise?

(6)

(c)

What is the meaning of the term “whole cause of action”?

(4)

(d)

Does the plaintiff have recourse to the transfer of a case from lower courts to the High Court? (4) [20]

HIGH COURT JURISDICTION AND PROCEDURE QUESTION 2 (a)

What type of claim can give rise to an application for summary judgement?

(b)

J and T are married to each other and are domiciled in Lesotho. After having been married to each other for a period of 8 years, J wishes to divorce his wife, T. At the time of the institution of the divorce proceedings, J had been domiciled in Pretoria for sixteen months. With these facts in mind, answer the following questions. (i) (ii)

(c)

Will the Pretoria High Court, have jurisdiction to hear the action for divorce? (3) If J decides to issue summons against T, explain how the summons will be served on T, who remained in Lesotho. (2)

X, a photographer, is employed by the local magazine, Disclosures of the Rich and Powerful. She takes some photographs of a local politician, B, in the act of bribing a police officer at a nightclub in Pretoria. A close source informs B that some of the photographs of him paying the police officer will be published on the front page of the newspaper the following day. B is worried that his wife, a well-respected judge, and his political allies will find the photographs unacceptable. With these facts in mind, answer the following questions: (i) (ii) (iii)

(d)

(4)

Briefly describe the procedure that B may use to approach the court to prevent publication of the article and the photographs. (3) Name and discuss the order that the court will grant to ensure that the audi alteram partem principle is adhered to if B is successful with this action. (2) Briefly name and discuss the documents that comprise the procedure identified in (i) above. (3)

Briefly explain the purpose of third-party procedure.

(3) [20]

QUESTION 3 (a)

X has a claim against Z for R600 000 for personal injuries suffered as a result of Z’s unprovoked attack on him in Pretoria. X is an incola of Pretoria, and Z is an incola of Johannesburg. Answer the following questions, give full reasons for your answers: (i) (ii)

Fully explain why North Gauteng High Court, Pretoria, would have jurisdiction to hear the claim. (2) Fully explain the type of summons that X would employ to institute the claim against Z.(2)

[TURN OVER]

Confidential Page 7 of 8

CIV3701 January/February 2022

(b)

What are the requirements for an order for attachment ad confirmandum jurisdictionem?

(4)

(c)

What are the requirements for an order for attachment ad fundandam jurisdictionem?

(4)

(d)

What is the effect of section 21(3) of the SCA in respect of the location of the property for purposes of attachment? (3) [15]

MAGISTRATES’ COURTS JURISDICTION AND PROCEDURE QUESTION 4 (a)

If the court does not have jurisdiction in terms of section 28(1)(d) of the Magistrate’s Court Act, 32 of 1944, to hear the matter, does it mean that the court cannot hear the matter at all? (4)

(b)

Briefly discuss the difference between the special plea and the exception.

(c)

A, drives through a red traffic light and collides with B’s motor vehicle. B suffers damages in the amount of R420 000. B lives and work in Johannesburg. A, lives in Pretoria. B wishes to issue a summons against A in the Magistrates’ Court for damages suffered. (i) (ii)

(4)

Explain whether any Regional Magistrates’ Court will be competent to exercise jurisdiction? (3) Assume on the same facts that A owes B an amount of R20 000 for services rendered by B to A, the amount which A admits. Will your answer in (i) above differ? Explain. (4) [15]

QUESTION 5 (a)

X enters into a contract with Y in Pretoria. In terms of the contract, Y will build a house for X in Soweto. X pays Y R400 000 for the project. Y resides in Krugersdorp. Y fails to finish building the house and refuses to do so. X wants Y to finish building the house. Will any magistrates’ court mentioned herein be competent to force X to finish building the house? (5)

(b)

B owns property in Durban, which she has rented to A. The monthly rental is R30 000. A is four months in arrears, and B suspects that A plans to leave the property to avoid paying the arrear rentals in the amount of R120 000. Advise B regarding the steps she may take to recover payment of the arrear rental. (5) [10]

APPEAL, REVIEW AND VARIATION OF JUDGMENT QUESTION 6 (a)

When may a judgment creditor execute against immovable property?

(6)

(b)

What is a “nulla bona” return?

(3)

(c)

what does the process of execution entail?

(3)

(d)

During a trial, plaintiff’s representative objects to admission of inadmissible evidence. Counsel’s objection is overruled by the magistrate and the magistrate bases a substantial part of the

[TURN OVER]

Confidential Page 8 of 8

CIV3701 January/February 2022

judgment on the evidence contended to be inadmissible. The plaintiff’s claim is dismissed. With these facts in mind answer the following questions. (i) (ii) (iii) (e)

Should the plaintiff appeal the judgment or take it on review? Depending on your answer to (i) above, name the procedure that should be used. Name the two distinctions between appeal and review.

(1) (1) (2)

Briefly discuss grounds for reviewing the proceedings of quasi-judicial bodies in terms of common law. (5) [20]

TOTAL: [100] © Unisa 2021

[TURN OVER]...